Problem description

It is about the following:

The EUTMR provides for options for the claimant with regard to the attachment of the translation of the claim (see Article 8 (1) to (3) of the EUTMR).

The plaintiff has the choice of whether or not to include a translation into the defendant’s language with the claim from the outset. The recipient can then refuse to receive the claim by returning it if he does not understand the plaintiff’s language. If the refusal of acceptance was justified, the service must be made up for with a translation. In the present case, the plaintiff had decided to enclose a translation from the outset. A very considerable period of time elapsed before service with translation was effected. This was – clearly wrongly! – The Frankfurt Higher Regional Court blamed the plaintiff for this, as the plaintiff would have had the option of initially sending the claim to the defendant without a translation and therefore more quickly.

The BGH ruling

The Federal Court of Justice convincingly rejected the opinion of the Higher Regional Court of Frankfurt regarding the effective suspension of the limitation period under the EU Regulation.

The BGH first made the following general statements with regard to the EU foreign service of process and the question of the suspension of the statute of limitations under the EU Regulation:

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If a time limit is to be observed by service, this effect shall take effect in accordance with Section 167 ZPO (German Code of Civil Procedure), this effect already occurs upon receipt of the application or declaration if service is effected shortly.

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It is true that the action was only served on December 9, 2016 and therefore more than eleven months after the expiry of the limitation period. However, this is harmless because service was “imminent” within the meaning of Section 167 ZPO.

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This should not be based on a purely temporal approach. Rather, because service is effected ex officio, the parties should be protected from disadvantages caused by delays within the court’s business operations, as they cannot influence these delays. There is therefore no absolute time limit beyond which service can no longer be regarded as “imminent”. This also applies if there are delays lasting several months. Delays in the service procedure that are caused by incorrect handling of the matter by the court do not have to be attributed to the party who is responsible for meeting the deadline.

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However, the party is responsible for delays that are not merely minor and that they or their legal representative (Section 85 (2) ZPO) could have avoided if they had conducted the proceedings conscientiously (BGH, judgment of September 12, 2019, loc. cit.). Delays are therefore attributable if the party or their legal representative has contributed to a delay in service that is not merely minor through negligent – even slightly negligent – conduct.

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Measured against this, there is no delay in service caused by the plaintiff.

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Pursuant to Art. 5 (1) Brussels I Regulation, the transmitting agency must inform the party requesting service (“applicant”) of the risk of a possible refusal of acceptance by the addressee of a document that is not drafted or translated (Art. 8 (1) Brussels I Regulation) into one of the languages listed in Art. 8 Brussels I Regulation. Nevertheless, it is up to the applicant to decide whether a translation of the document in question is required, the costs of which must be borne by the applicant in accordance with Art. 5 (2) of the Brussels I Regulation (ECJ, judgment of September 16, 2015 – C-519/13, Alpha Bank Cyprus, RIW 2015, 748 para. 35). In this respect, he has the right to choose.

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If the party initiating service decides to effect service without translation, the rights of the addressee are protected pursuant to Art. 8 (1) of the EU Regulation by the fact that the addressee can refuse acceptance if the documents are written in a language that he does not understand and that is not the official language of the receiving state (see BGH, decision of December 21, 2006 – VII ZR 164/05, NJW 2007, 775 para. 16). The recipient is informed of this in the form in accordance with Annex II of the EU Regulation, which must be handed over to him with the service.

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As an interim conclusion on the requirements for a suspension of the limitation period under the EUTMR, it can be stated that

• the requirement of “imminent” service requires the plaintiff to contribute to undelayed service. Purely judicial omissions are irrelevant.
• the EUTMR grants the plaintiff options for EU international service that have an influence on the (initial, possibly untranslated) service.

On the question of whether the plaintiff could be restricted in his options in order to comply with the “imminent” requirement (according to the OLG Frankfurt), the BGH then made the following appropriate statements:

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The party effecting service cannot be held responsible for delays resulting from the choice of service made by him in accordance with Art. 5 and Art. 8 of the EU Regulation. However, this question has not yet been clarified by the supreme court and is disputed in the literature.

On the one hand, the literature takes the view that the applicant may not, within the framework of Section 167 ZPO, select any of the service options regulated in the EU Regulation that would lead to more than a minor delay; rather, there is an obligation to make use of the options for accelerated service to the extent that they are opened up by the EU Regulation (see Musielak/Voit/Stadler, ZPO, 17th ed, Art. 8 EuZVO para. 1; Nagel/Gottwald/Gottwald, Internationales Zivilprozessrecht, 8th ed., § 8 para. 8.67; Hüßtege/Mansel/Brand, Rom-Verordnungen, 3rd ed, Das anwaltliche Mandat im internationalen Schuldrecht, para. 45; Kern/Diehm/Diehm, ZPO, 2nd ed., section 167 para. 10; BeckOK-ZPO/Dörndorfer, 2020, section 167 para. 4; Kuntze-Kaufhold/Beichel-Benedetti, NJW 2003, 1998, 1999; Grootens, MDR 2019, 1046, 1047). On the other hand, a freedom of choice opened up by law – as here by the EU Regulation – should not be able to tighten the obligations of Section 167 ZPO (Zöller/Greger, ZPO, 33rd ed., Section 167 para. 15; Niehoff, IWRZ 2019, 232; Hess, IPRax 2020, 127, 128).

The latter view is correct. It does not constitute negligent service of process to make use of a method of service opened up by the Brussels I Regulation, even if this may delay service compared to other options. There is neither an obligation nor a duty on the part of the party effecting service to have the action served without translation.

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In each individual case, the national court must ensure balanced protection of the respective rights of the parties concerned by weighing the objective of effectiveness and speed of service in the interest of the applicant against the objective of effective protection of the rights of defense of the addressee (ECJ, judgment of 8 November 2005 – C-443/03, Leffler, ECR 2005, I-09611 para. 68; order of 28 April 2016 – C-384/14, Alta Realitat S.L, juris para. 58).

This is not compatible with the argument – also taken up by the Court of Appeal – that service without translation is “not dangerous” for the applicant with regard to Article 8 (3) sentence 3 of the EU Regulation (see Fabig/Windau, NJW 2017, 2502, 2503; Grootens, MDR 2019, 1046, 1047). In this light, the applicant cannot be instructed to attempt service without translation in order to meet the deadline. The assumption of such an obligation would make this type of service the rule (see Hess, IPRax 2020, 127). However, this would not take sufficient account of the interests of either the recipient or the applicant.

On the one hand, it is not in line with the objective of the EU Regulation that the applicant always exercises his right of choice regardless of the language skills of the recipient.

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Secondly, the assumption of an obligation to first attempt service without translation does not take into account the legitimate interests of the applicant. He would be obliged to take the risk of a justified refusal to accept service by the addressee in accordance with Art. 8 (1) EC Regulation even if he knows for certain that the addressee does not speak the language. If the recipient actually makes use of his right to refuse acceptance, this is disadvantageous for the applicant in several respects, which in turn result from Art. 8 (1) and (3) of the EU Regulation. A new service must be made, which in principle takes effect ex nunc for the time limits to be observed by the applicant (see Eichel, IPRax 2017, 352, 353 with further references). With regard to Art. 8 para. 3 sentence 3 Brussels I Regulation, the applicant now faces an additional risk of limitation because he cannot wait indefinitely for the new service and it is unclear how long he has to do so (see para. 26).

In addition, the refusal of acceptance results in a delay in the proceedings. This is not only due to the fact that a translation has to be prepared and the service repeated after all. Rather, the loss of time is also caused by the fact that Art. 8 para. 3 sentence 3 of the EU Regulation restricts the retroactive effect to the “relationship with the applicant”. This is because the service of the document instituting the proceedings must not lead to the expiry of time limits for the defense at the expense of the addressee as long as the latter is unable to understand the content of the document (see ECJ, judgment of 8 November 2005 – C-443/03, Leffler, ECR 2005, I-09611 para. 67 f; see also Eichel, IPRax 2017, 352, 353). Therefore, the time limit for filing a statement of defense pursuant to Art. 8 para. 3 sentence 2 Brussels I Regulation does not begin to run until the translation is served (see Rauscher/Heiderhoff, Europäisches Zivilprozess- und Kollisionsrecht, 4th ed., vol. 2, A.II.1, Art. 8 para. 24).

Restricting the right of choice provided for in Article 5(1) of the EUTMR would ultimately also mean preventing the service operator from taking the safest route. Even if he has positive knowledge of the recipient’s language skills and a translation would then be unnecessary, there is a risk that the recipient will (unjustifiably) refuse acceptance. A dispute about the legitimacy of the refusal to accept (see Geimer/Schütze/Geimer, Europäisches Zivilverfahrensrecht, 4th ed., Art. 8 EuZVO para. 9 ff) can considerably delay the proceedings. Against this background, it does not appear reasonable to require the applicant to take a course of action within the framework of Section 167 ZPO that may be associated with procedural disadvantages for him.

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As a further interim conclusion, it should be noted that, according to the correct statements of the Federal Court of Justice on the requirements for an effective suspension of the limitation period under the EU Regulation

• the plaintiff has a reasoned choice under the EUTMR as to whether he wishes to be served with or without translation,
• service with translation is the safest way for the plaintiff,
• the obligatory service without translation would entail unreasonable risks for the plaintiff in view of the limitation period, and
• delivery initially without translation can ultimately lead to a significant delay in delivery.

Finally, the BGH “rounded off” by clarifying that the plaintiff is also free to decide whether to have the translation done himself or via the court. The BGH commented on this:

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It also does not constitute negligent conduct of the proceedings not to provide the translation yourself but to have it commissioned by the court.

On the one hand, a plaintiff may wait until the last day before the expiry of the limitation period to file a claim without this being counted as fault (see BGH, judgment of April 7, 1983 – III ZR 140/81, VersR 1983, 661, 663; of May 18, 1995 – VII ZR 191/94, NJW 1995, 2230, 2231). On the other hand, he must then do everything reasonable to create the conditions for prompt service (BGH, decision of March 29, 2018 – III ZB 135/17, NJW-RR 2018, 763 para. 16; judgment of December 10, 2019 – II ZR 281/18, WM 2020, 276 para. 8; in each case with further references). According to the case law of the Federal Court of Justice, it is the plaintiff’s responsibility to provide all cooperation required for proper service of process; once the plaintiff has provided this cooperation, the further responsibility for the proper course of the service procedure lies exclusively in the hands of the court, whose course of business cannot be directly influenced by a plaintiff and their legal representative (cf. BGH, judgment of July 12, 2006 – IV ZR 23/05, BGHZ 168, 306 para. 20; see also BAG, judgment of August 23, 2012 – 8 AZR 394/11, BAGE 143, 50 para. 31 f). There is no legal basis for an obligation or duty on the part of the plaintiff and his legal representative to work towards the greatest possible acceleration even at this stage of the proceedings by monitoring the court’s actions. It does not arise from the relationship under procedural law because the plaintiff, for his part, has already done everything that the Code of Civil Procedure requires of him for service of process (BGH, judgment of July 12, 2006, loc. cit. para. 21; of October 1, 2019 – II ZR 169/18, juris para. 10 mwN; see also BAG, judgment of February 15, 2012 – 10 AZR 711/10, juris para. 48).

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